Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a Judgment of the Superior Court of Los Angeles County No. KC 050858. Peter J. Meeka, Judge.
Robert Jimenez, in pro. per., Plaintiff and Appellant.
Law Offices of Pease & dePetris, Cynthia A. dePetris, for Defendants and Defendants.
ZELON, J.
Plaintiff Robert Jimenez appeals judgment on his complaint alleging tort claims against defendants Cynthia A. dePetris and Edgar B. Pease III arising out of their representation of plaintiff’s former spouse in their dissolution proceedings. The trial court sustained defendants’ demurrer on the grounds their conduct in the dissolution proceedings was privileged under Civil Code section 47(b), that plaintiff could not state a claim for malicious prosecution because he could not plead favorable termination, and plaintiff’s other tort allegations failed to state a claim for relief. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendants dePetris and Pease are attorneys who represented plaintiff’s spouse Claudia Jimenez in her dissolution action against plaintiff. Plaintiff’s complaint alleged 15 claims for “intentional tort,” all of which were based upon defendants’ filings with the court in the dissolution action.
Because they share the same last name, we refer to Claudia by her first name to avoid confusion with plaintiff, and not out of disrespect.
The factual basis for plaintiff’s claims can be summarized as follows: In February 2003, Claudia filed a dissolution action in propria persona; in December 2003, the parties reached an agreement regarding custody and visitation, which was reduced to a court order. In March 2004, Claudia retained defendants to represent her in the dissolution action.
Plaintiff’s First Amended Complaint consisted of 22 pages of Judicial Council Form PLD-PI-001, and a 21-page Declaration.
Plaintiff’s first amended complaint alleged that on May 7, 2004, the court ordered defendants to give notice of a status conference scheduled for June 11, 2004. Defendants allegedly withheld from plaintiff the fact that they had filed an OSC on May 3, 2004 to modify an existing court order; plaintiff alleged that the affidavit in support of that OSC contained false statements. On May 15, 2004, defendants mailed the notice for the June 11, 2004 hearing, but the notice period was improperly short and omitted the children’s counsel. Finally, plaintiff alleged that Pease “physically altered” the Order after the June 11, 2004 hearing by omitting defendants’ alleged failure to give proper notice.
Plaintiff alleged that in connection with an OSC concerning visitation filed and served in July 2004, Pease made false statements in support of the OSC and regarding its service, and in August 2004, defendants sought a wage garnishment for child support to further carry out their deceitful acts. In connection with a January 27, 2005 OSC re contempt, plaintiff alleged that defendants filed false affidavits regarding service and supported the OSC with copies of the fraudulent order they had prepared after the June 11, 2004 hearing.
Further, in connection with contempt proceedings against plaintiff, plaintiff alleged that: In February 2005, Pease initiated criminal contempt proceedings against him; in May 2005, Pease testified to incorrect facts at plaintiff’s contempt trial; in August 2005, the court issued a statement of decision on the trial based upon numerous errors perpetrated on the court by Pease; in October 2005, Pease served a declaration containing numerous false factual statements; and in December 2005, the court sentenced plaintiff to a term of 40 days in jail (suspended, with two years probation).
Plaintiff alleged additional similar conduct in various hearings in 2006 and 2007, contending Pease filed affidavits containing false statements.
Defendants demurred to the first amended complaint on the grounds of uncertainty and failure to state a cause of action, and contended their conduct was privileged under the litigation privilege of Civil Code section 47, subdivision (b) because all of the alleged wrongdoing took place in the family law proceedings. Both Pease and DePetris filed declarations in support of the demurrer, and requested judicial notice of the court file in the related family law proceedings.
All statutory references herein, unless otherwise noted, are to the Civil Code.
Plaintiff opposed the demurrer contending that defendants’ actions were not authorized by law, did not achieve the objectives of the litigation, were malicious unverified communications, and outside the scope of the litigation privilege. Further, although his claims were all labeled “intentional tort,” plaintiff asserted they constituted abuse of process (claims one through eight), fraud and deceit (claims nine to 11), intentional infliction of emotional distress (claim 12), barratry (claim 13), and malicious prosecution (claims 14 and 15), with the family law court being the forum in which defendants committed their tortious acts.
At common law, barratry was “‘the offense of frequently exciting and stirring up suits and quarrels.’” (Rubin v. Green (1993) 4 Cal.4th 1187, 1190.) The unlawful solicitation of litigation by attorneys is the modern version of common law barratry. (Ibid; see also Pen. Code, §§ 158, 159.)
Plaintiff contended that under section 47, subdivision (b)(1), the privilege did not extend to “[a]n allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution or legal separation . . . unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues in the action.” He also contended that under section 47, subdivision (b)(2), the privilege did not extend to the intentional destruction of physical evidence, and that he met the favorable termination requirement for a malicious prosecution action because defendants were able to prevail only on the basis of their unlawful acts.
In reply, defendants contended that all of their conduct fell within the litigation privilege; the cause of action for malicious prosecution, which was not covered by the privilege, failed because plaintiff had not prevailed on any motion or other proceeding in the family law matter; and the provisions of section 47 also privileged allegedly fraudulent or perjurious statements.
The trial court granted defendants’ request for judicial notice, and sustained defendants’ demurrer without leave to amend. The court ruled that all of the causes of action of the first amended complaint were based upon publications made during the course of pending litigation and were privileged, except for the claims for malicious prosecution. With respect to those claims, plaintiff failed to allege there had been a favorable termination of any of the claims.
DISCUSSION
Plaintiff argues that (1) an exception to the litigation privilege applies to defendants’ conduct, (2) he can assert a derivative tort action arising from the dissolution proceedings, (3) his malicious prosecution claim survives demurrer because the prior proceedings were terminated in his favor, (4) the form of his pleading, which failed to separate his causes of action, was not grounds for demurrer; and (5) he should be permitted to move to strike defendants’ costs in connection with the demurrer.
I. STANDARD OF REVIEW.
In reviewing the sufficiency of a complaint against a general demurrer, we assume the truth of all facts properly pleaded and review the complaint de novo to determine whether it states facts sufficient to state a cause of action. (Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 180.) We accept as true the properly pleaded material factual allegations, together with facts that may be properly judicially noticed. Reversible error exists if facts were alleged showing entitlement to relief under any possible legal theory. (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1444.) When a demurrer is sustained without leave to amend, we must also decide whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) If the complaint can be cured, the trial court has abused its discretion in sustaining without leave to amend. (Ibid.) The burden is on the plaintiff to show how the complaint can be amended to state a cause of action. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386.)
The court may consider, as grounds for demurrer, any matter that may be judicially noticed (Code of Civ. Proc., § 430.30, subd. (a)), and may take judicial notice of the records in the pending action, or any other action pending in the same court (Evid. Code, § 452, subd. (d)).
II. THE LITIGATION PRIVILEGE BARS ALL OF PLAINTIFF’S CLAIMS EXCEPT FOR MALICIOUS PROSECUTION.
Plaintiff contends the litigation privilege does not apply because section 47, subdivision (b)(1) creates an exception for false allegations made in affidavits in the marital dissolution proceedings.
The litigation privilege of section 47, subdivision (b) “applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. (Ibid.) The privilege applies in family law proceedings. (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 956.)
Section 47, subdivision (b), is intended to afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, and to give finality to judgments. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1063.) The privilege is broadly applied to promote effective judicial proceedings by encouraging full communication, and applies to civil actions based upon perjury. (Flatley v. Mauro (2006) 39 Cal.4th 299, 322; Jacob B. v. County of Shasta, supra, 40 Cal.4th at p. 955.)
The privilege applies here to bar all of plaintiff’s claims except the claims for malicious prosecution. Plaintiff’s first amended complaint exclusively alleges statements made by defendants in the family law proceedings in connection with various proceedings and hearings; such statements were made to achieve the objectives of such proceedings or hearings and such statements bore a relation to the issues before the court. As such, they fit squarely within the privilege. (Silberg v. Anderson, supra, 50 Cal.3d at p. 212.)
Plaintiff relies on what he terms the “divorce proviso” of section 47, subdivision (b)(1). Plaintiff misreads the statute. That exception provides that the litigation privilege does not extend to “(1) An allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution or legal separation made of or concerning a person by or against whom no affirmative relief is prayed in the action shall not be a privileged publication or broadcast as to the person making the allegation or averment within the meaning of this section unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues in the action.” (Section 47, subd. (b)(1) (emphasis added).) This exception does not apply in this case where the challenged statements in the dissolution proceedings related to plaintiff, against whom relief was sought. (Silberg v. Anderson, supra, 50 Cal.3d at p. 216 [“the ‘without malice’ requirement [of section 47, subdivision (b)(1)] applies only to those allegations against correspondents published in the pleadings and affidavits filed in dissolution proceedings. . . .”].)
Finally, plaintiff’s attempts to characterize defendants’ drafting of the order after the June 11, 2004 hearing as “destruction of evidence” that is not privileged under section 47, subdivision (b)(2) fails because the preparation of an order does not constitute “destruction” of evidence.
Section 47, subdivision (b)(2) provides in relevant part, “[t]his subdivision does not make privileged any communication made in furtherance of an act of intentional destruction or alteration of physical evidence undertaken for the purpose of depriving a party to litigation of the use of that evidence. . . .”
II. PLAINTIFF CANNOT PLEAD MALICIOUS PROSECUTION AND CANNOT SHOW FAVORABLE TERMINATION.
Plaintiff argues that the family law proceedings will support “derivative tort” actions in the form of malicious prosecution claims, relying on Bidna v. Rosen (1993) 19 Cal.App.4th 27 (Bidna). He further argues he has established favorable termination because any favorable termination defendants obtained was procured through fraud. We conclude plaintiff cannot state a claim for malicious prosecution.
To establish a malicious prosecution claim, the plaintiff must show the prior action was (1) brought by the defendant and resulted in a favorable termination for the plaintiff; (2) initiated or continued without probable cause; and (3) initiated with malice. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.)
In Bidna, supra, 19 Cal.App.4th 27, the court considered prior precedent regarding malicious prosecution actions arising from dissolution proceedings, and adopted a bright-line rule prohibiting all malicious prosecution actions arising out of family law proceedings. (Id. at p. 37.) “The arguments for a bright line rule are several and substantial. First, family law cases have a unique propensity for bitterness. . . . [¶] Second, family law courts have the unique ability to swiftly discourage litigious nonsense at its source by means of attorney fee awards which are intended as a sanction against a party’s conduct. . . . [¶] Third, family law remedies require a special sensitivity and flexibility; allowing separate malicious prosecution actions in the wake of unsuccessful attempts to obtain certain remedies may have a chilling effect on the ability to obtain those remedies by . . . increasing the risk of asking for them. . . . [¶] Finally, . . . there is the impact of separate malicious prosecutions . . . on lawyers’ malpractice insurance premiums. . . .” (Bidna, supra, 19 Cal.App.4th at p. 35; see also Begier v. Strom (1996) 46 Cal.App.4th 877, 888 [adopting reasoning of Bidna in affirming demurrer to malicious prosecution action arising out of false accusations of child molestation in dissolution proceeding]; Burkle v. Burkle (2006) 144 Cal.App.4th 387, 396-397 [relying on Bidna in finding wife could not file separate civil action to enforce order made in dissolution action].)
For the reasons set forth in Bidna, plaintiff cannot state a malicious prosecution claim based upon the motions and filings in the family law proceedings. Further, even if we were to conclude that plaintiff could state a claim for malicious prosecution in the context of the family law proceedings, he cannot show favorable termination. One of the essential elements of an action for malicious prosecution is that the prior litigation resulted in a favorable termination, which “tends to indicate the innocence of the accused.” The core of this concept of favorable termination is that it must reflect on the merits of the prior action. (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 26, fn. omitted.) There must be a favorable termination of the entire action. (Friedberg v. Cox (1987) 197 Cal.App.3d 381, 386-387.) Indeed, as noted in the family law cases relied on by Bidna, one of the rationales cited for prohibiting malicious prosecution actions arising from family law motions is the fact such piecemeal proceedings have no independent substance. (See, e.g., Twyford v. Twyford (1976) 63 Cal.App.3d 916, 922; Silver v. Gold (1989) 211 Cal.App.3d 17, 23-24.) Here, aside from the fact they could not support the favorable termination requirement even if decided in his favor, plaintiff’s pleading admits that none of the motions and orders to show cause were decided in his favor, and he therefore cannot satisfy the favorable termination requirement. Finally, his allegation that defendants’ purported fraud in filing false affidavits should negate any finding of favorable termination finds no support in the law or the record. (See Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1053-1056 [party has burden of exposing falsity of evidence during trial, and may not rely on allegations of fraud to support element of lack of probable cause in later malicious prosecution action].)
Plaintiff also contends the trial court wrongly sustained the demurrer based upon his failure to designate his causes of action. Because we conclude his first amended complaint fails to state a claim based upon our substantive analysis of the causes of action asserted, we do not consider this argument.
III. MOTION TO TAX COSTS.
Plaintiff asserts that he “should be able to move to strike and tax cost[s] upon any disfavorable termination herein,” and complains that defendants served him with a proposed judgment that contained no costs, and that the costs were filled in by the judge on the final copy of the order of dismissal.
The record reflects that after prevailing on their demurrer, on November 14, 2007, defendants filed a “Notice of Ruling” and a dismissal of the action. Simultaneously, they filed a memorandum of costs seeking $1,040 in costs. On December 11, 2007, plaintiff filed his notice of appeal. This court notified the parties that to properly dispose of the matter, a judgment of dismissal signed by the court was required. The trial court signed its order dismissing the action on February 11, 2008, and awarded $1,040 in costs to defendants.
Although plaintiff’s notice of appeal was premature because he filed it in December 2007 before the entry of judgment in February 2008 (due to defendants’ failure to file a proper judgment), we treat such appeal as being immediately filed after entry of the judgment. (Cal. Rules of Court, rule 8.104, subd. (e)(1); Davaloo v. State Farm Insurance Co. (2005) 135 Cal.App.4th 409, 413.)
The record further reflects plaintiff failed to move to tax defendants’ cost memorandum. Due to his failure to raise the propriety of the cost award in the trial court, plaintiff has forfeited the issue. (Children’s Hospital and Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 776-777.)
DISPOSITION
The judgment of the superior court is affirmed. Respondents are to recover their costs on appeal.
We concur: WOODS, Acting P. J., JACKSON, J.